Roberts’ Declaration of Independence: Affordable Care Act Survives

by Jack Random / July 3rd, 2012

On June 28, 2012 Chief Justice John Roberts took control of his own court by casting the deciding vote to uphold the constitutionality of President Barack Obama’s keystone legislative achievement: The Affordable Care Act of 2010.

Until that decision America’s highest judicial body was the Roberts Court only in name. Its most influential member was Anthony Kennedy and its most powerful voice was Antonin Scalia. With one stroke of the pen John Roberts became a man of substance, never again to be taken for granted. By dramatically asserting his independence from the conservative wing of the court, he becomes the second most powerful man in the most powerful nation on earth.

I am neither a fan of the Affordable Care Act nor of the Chief Justice. Roberts has presided over some of the most destructive and partisan decisions in the court’s modern history. As predictable as Pavlov’s dogs, he sided with Scalia and the majority in Citizens United v. Federal Election Commission 2010, declaring corporate contributions to political campaigns protected free speech.

In the current term, Roberts and his conservative wing upheld the principle of Citizens United over the principle of states’ rights in American Tradition Partnership v. Bullock, overturning Montana’s 99-year-old ban on corporate political contributions and upholding the view that states’ rights are secondary to corporate and political interests (see Bush v. Gore 2000). The court also approved a strict limit on Union political contributions (union members must have prior approval as well as opt out provisions), neglecting to note that corporations have no similar requirement (Knox v. SEIU). Imagine the uproar if Exxon had to poll its shareholders and provide an opt-out in the form of a dividend before it could contribute to political campaigns.

On the environmental front, this court has never met a polluter it did not favor. Witness Exxon v. Baker 2008 imposing severe limits on compensation to the victims of the Exxon Valdez catastrophe. The Roberts Court continued their anti-environment corporate assault with two decisions in 2009: Entergy Corporation v. EPA and Couer Alaska, Inc v. SE Alaska Conservation Council.

A recent review by the Constitutional Accountability Center found that the Roberts Court had upheld all cases the Chamber of Commerce advocated in the current term, an unprecedented record of success, upholding the opinion that this court represents the greatest corporate bias in Supreme Court history.

From the Lilly Ledbetter decision to the ruling that allowed public interest laws to be used for corporate development (Kelo v. City of New London 2005), the Roberts court has laid down no precedent stronger than corporate supremacy.

That corporate bias stands with the ruling on the Affordable Care Act. The Chamber of Commerce supported the individual mandate (a requirement that consumers buy a corporate product) but argued that the entire law should be struck down if the mandate fell. The dissenters in the case (Scalia, Kennedy, Alito, Thomas) adopted the Chamber’s argument.

It turns out there was never any chance that the individual mandate would be struck down without eliminating the entire law. That is a shame for that is exactly the decision many of us would have favored.

Failing all other means, the mandate was needed to pay for the program. Had it been overturned while the law survived, the administration would be scrambling today to find other ways to fund it. The most obvious and equitable means to cost efficiency is the elimination of the middleman.

Otherwise known as single payer, it should have been the approach to health care reform all along. The only difference is that the advocates of this approach should it call by a name that rings virtuous, familiar and true to the vast majority of Americans: Universal Medicare.

What the Supreme Court has achieved with its ruling is to assure us that universal health care remains a very remote dream. It’s provision that states can opt out of the Medicaid expansion provision gives us further assurance.

To be sure, most Americans will be better off after the Affordable Care Act is fully enacted than they were before but health care in this country remains an unsustainable system because it wastes trillions of dollars on an industry that serves no useful function. Indeed, the function of the insurance industry is detrimental to our health and well-being.

Every individual who has ever had to deal with insurance providers knows: they do not have our interest at heart.

Meantime, while we have not witnessed a sea change in our health care system, we have seen a potentially radical shift in the balance of power on the Supreme Court.

Chief Justice John Roberts did not stand up to his corporate benefactors but he did stand up to Antonin Scalia, Anthony Kennedy, and the right wing radicals who are striving to take over not only the Republican Party but all branches of the American government as well.

For now, they have failed and that is something to celebrate.

In this one case, Roberts has shown some of the essential qualities of a good justice: independence of thought, a willingness to compromise, an ability to see beyond the immediate case, and a determination not to be ruled by political bias.

What he has not yet demonstrated is the courage to stand in opposition to the corporate bias that has defined his court.

For that we can only hope.

Jack Random is the author of Ghost Dance Insurrection (Dry Bones Press) the Jazzman Chronicles, Volumes I and II (City Lights Books). The Chronicles have been published by Dissident Voice and others. Read other articles by Jack, or visit Jack's website.